Legal Advice Given By Advocate General To Government Exempted From Disclosure Under RTI Act: Kerala High Court

The Kerala High Court on Friday held that the legal advice rendered by the Advocate General to the Government is exempted from disclosure under Section 8(1)(e) of the Right to Information Act, 2005 (RTI Act, 2005) as the relationship between the two constituted a fiduciary relationship.

Justice P.V. Kunhikrishnan in the ruling said:

"...there may be delicate and sensitive issues, in which the Government wants the opinion of the Advocate General. Those are confidential communications between the Government and the Advocate General. The legal opinions given by the Advocate General to the Government should always be confidential. That is protected under Section 8(1)(e) of the Act 2005".

The court earlier observed that the relationship between lawyer and client is a fiduciary one, and that the communications between the two were also protected under Section 8(1)(e) of RTI Act. 

"There may be delicate and confidential communications between a lawyer and his client. All communications between the lawyer and his client are to be protected because these communications are confidential".

Section 8(1)(e) of the RTI Act says that information available to a person in his fiduciary relationship is exempted from disclosure. 

The court passed the decision on two appeals filed by the Advocate General's Office against an order passed by the State Information Commission. The Commission held an applicant entitled to a copy of the legal advice given by the Advocate General in the Lavalin case.

RTI REQUEST

The information sought by the applicant included:

1) a certified copy of the legal advice given by the Advocate General's Office to proceed with the appeal against the judgment of Justice V. Ramkumar in the case of Murukesan vs. State of Kerala;  

2) the legal advise rendered by the Advocate General's Office to proceed with the appeal in the Supreme Court against the division bench decision;

3) the certified copy of the order appointing Senior Counsel Advocate Rao, who appeared on behalf of the Government of Kerala;

4) and the details of Expenses incurred to the Government of Kerala in both the appeals including the professional fee of the counsel in the Supreme Court.

The Response

In case of the appointment of Senior Advocate Rao, and the expenses incurred, the SPIO replied that it had no information regarding such appointment, nor had there been any expenses incurred by the Government of Kerala in both the appeals till date.

As regards the request for certified copy of the legal advice by the Advocate General for challenging the single bench decision, it was rejected on the ground that no such advice had been rendered. The second request regarding the Supreme Court appeal was rejected on the ground that the same was exempted from disclosure as per Section 8 (1)(e) of the RTI Act, 2005.

It was stated by the SPIO that there existed a fiduciary relationship between the Advocate General, and the Government. The Appellate Authority also confirmed this order on appeal preferred.

However, in the second appeal before the State Information Commission, it was directed by the SIC that the details ought to be furnished by the petitioners. It is against this direction that the instant writ petitions have been filed. 

Arguments in HC

On behalf of the petitioners before court, it was contended by the Special Government Pleader, T.B. Hood, that the information sought for by the respondent was the legal opinion given by the Advocate General to the Government, which is exempted from disclosure under Section 8 (1)(e) of the RTI Act, 2005.

It was submitted by the counsel that this was because the relationship between the Advocate General and the Government constituted a fiduciary relationship. The case of Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal (2020) was also relied upon by the counsel to elucidate the ambit of fiduciary relationship.

It was submitted that the relationship between the two was essentially that of an advocate and client. The Counsel submitted that even under the Indian Evidence Act, under Section 126, the confidential communication between the Advocate General and the Government is protected from disclosure.

It was also argued that the lawyer of a government or a public body is not its employee but a professional practitioner engaged to do a specific work. The court was told the relationship between the lawyer and his client is one of trust and confidence.

The Standing Counsel for the State Information Commission M. Ajay, Advocates P.K. Ibrahim, and C.V. Antony who appeared on behalf of the respondents in the two writ petitions, submitted that the opinion given by the Advocate General on the file forwarded by the Government, was a part of the file itself, and hence does not fall within the purview of Section 8(1)(e) of the Act. 

What did the court rule?

The Court in this case deliberated upon the twin questions of whether the the relationship between the Advocate General of the State and the Government constituted a fiduciary relationship; and whether the legal opinion given by the Advocate General to the Government is exempted from disclosure under Section 8(1)(e) of the RTI Act. 

The Court in this case reiterated that the relationship between the Advocate General and the State Government is essentially that of an Advocate and a client in relation to his appearance in court and arguing the case before the court on behalf of the State, as per the Apex Court decision in Joginder Singh Wasu v. State of Punjab (1994).

"The Advocate General may give legal opinion to the Government on various issues. Some issues may be sensitive, some issues may be political, some issues may be religious, some issues may be about the functioning of the Government, and some issues may be about the constitutional validity of certain proposed enactments. The legal opinions given by the Advocate General will usually be honoured by the Government, but it is not binding to the Government," the court added.

The Court also perused the scope of Article 165 of the Constitution to arrive at its finding that it is the duty of the Advocate General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor.

Observing that those advices and opinions given by the Advocate General are to be treated as an opinion given by a lawyer to his client, the court said Section 126 of the Indian Evidence Act protects disclosure of the same. 

However, noting that Section 22 of the RTI Act provides an overriding effect over other enactments, it was observed, the court acknowledged that the opinions and advice rendered by the Advocate General fall within the ambit of 'information' under the 2005 law.

The court then deliberated whether the 'information' or legal opinion given by the AG would come within the four corners of the fiduciary relationship.

Rejecting the contention  that an opinion generated in a file would not fall within the purview of information available to a person in his fiduciary relationship, the court referred to the term's definition and explanation given by Supreme Court in Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal. The court also relied on V.C. Rangadurai v. D. Gopalan and Others and other decisions.

"The legal opinions given by the Advocate General to the Government should always be confidential. That is protected under Section 8(1)(e) of the Act 2005. If it is protected under Section 8(1)(e) of the Act 2005, the overriding effect of Section 22 of the Act to the Evidence Act will also not be available. In such circumstances, Section 126 of the Indian Evidence Act is also applicable as far as a legal opinion given by the Advocate General to the Government is concerned," said the court

Allowing the writ petitions, the court set aside the order passed by the State Information Commission. 

Case Title: Secretary to Advocate General & Ors. v. State Information Commissioner & Anr. 

Citation: 2022 LiveLaw (Ker) 507

Click Here To Read/Download The Judgment